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June 10, 1986

JAMES R. MARTIN, Defendant

The opinion of the court was delivered by: EISELE

Garnett Thomas Eisele, Chief Judge.


 The defendant has moved to suppress certain evidence which was obtained by government agents from the defendant's house on two separate occasions, April 10, 1985, and January 31, 1986. The defendant was arrested on both occasions.


 Special Agent Jack Hook of the DEA's Miami Office received information from Agent Carver of Little Rock that a confidential informant by the name of Brown would be coming into Miami with a David Barrow from Arkansas to obtain one kilo of cocaine. Agent Carver provided the flight number and requested surveillance. Officer Hook was informed that Agent Carver believed that Brown and Barrow would attempt to purchase the cocaine from defendant James Martin in Penbroke Park, Florida. Agent Hook observed the arrival of Brown and Barrow. He observed as they rented a car from Budget Rent-a-Car and drove to a Ramada Inn. He observed their leaving the Ramada Inn and driving north. At one point he lost Brown and Barrow in the traffic so he drove directly and quickly to the residence of James Martin. A few minutes later, Brown and Barrow arrived and went into the defendant's residence without anything in their hands. They were there from 20-30 minutes and then came out with a package. Barrow put the package under the front seat and he and Brown then drove to the Ramada Inn and left again heading north to Fort Lauderdale. After they got on the Florida Turnpike, the officers stopped them and arrested Barrow, seizing the one kilo of cocaine. This arrest occurred early in the night of April 5, 1985.

 The officers obtained a statement from Brown. Brown stated that when he and Barrow went into defendant Martin's residence, Brown and Martin went into the bedroom where Martin obtained the kilo of cocaine from the lower dresser drawer and gave it to Brown. Brown gave Martin $4,000 which he had obtained from Barrow. Brown stated that Barrow had received a telephone call from Martin on April 8 suggesting that he come to his, Martin's, residence "to make some money." Brown stated that Martin told him that Barrow would owe him $41,000 more which was to be paid after the cocaine was sold in Arkansas. At some point, Brown informed the DEA agents that Martin had a shotgun and that he also kept some kind of a notebook or diary of his drug transactions.

 Agent Carver also told Agent Hook about recorded telephone conversations between Brown and Martin.

 Upon the basis of the above facts, Officer Hook and his fellow officers felt they had reasonable cause to arrest defendant Martin that night for the conspiracy and possession of cocaine. The Court agrees.

 April 10, 1985 Arrest

 Agents Hook, Harper, Davis and Rice, with three or four uniformed officers of the Sheriff's Department, went to the defendant Martin's home at approximately 1:30 a.m. on April 10, 1985. Officers Hook, Rice and Harper knocked at the front door while the others observed the rear and sides of the house. The door was partially opened and the officers could see the heads of two persons. They asked for James Martin and the defendant identified himself and opened the door more fully. The officers had their weapons drawn at the time. The defendant was naked. Officer Hook told Martin that he was under arrest for conspiracy and the possession of cocaine. The defendant indicated a desire to go to his bedroom to get dressed. The officers agreed.

 Some of the other officers, who had entered the house immediately after Hook had placed the defendant under arrest, made a quick "sweep" of the entire house to determine who else might be present. However, no search for evidence was conducted and no evidentiary items were identified or taken before the defendant went into his bedroom with the officers.

 In the bedroom, Officer Hooks first observed a woman lying face down on the bed. Before coming to the house he had been told that Martin had a shotgun, so he asked him where it was. Martin answered that it was in the closet. The officers thereupon looked in the closet and found Gov. Exh. A, the shotgun. Then Officer Hook asked the defendant if there were any other guns and Martin pointed to the nightstand on the right side of the bed. Officer Hook opened the drawer in the nightstand and found Gov. Exh. B, a loaded .45 caliber revolver with six shells in it. He also noted Gov. Exh. C, a small amount of what appeared to be marijuana, in a small plastic bag, in open view on the top of the nightstand.

 Officer Hook testified that the defendant requested underwear to put on and he responded to the request by pointing to a pair of underwear on the floor. He testified that the defendant asked for clean underwear and stated that it would be found in the top drawer of the tall chest of drawers. As the officer was removing the underwear, he observed several piles of U. S. currency which turned out to total $27,000. See photo, Gov. Exh. D. Of course, Officer Hook was aware of the $4,000 transaction that had occurred in the house a little earlier in the evening. And he surmised that the cash used for the $4,000 transaction would be found as part of the $27,000. He therefore seized the cash. And, on top of that dresser, in open view, he found $1,662 more in cash.

 The Court has difficulty with the government's testimony that the defendant refused to put on the dirty underwear that was on the floor and, instead, requested the officer to get clean underwear out of the top drawer when he obviously knew it contained $27,000 in cash. Still, the Court is convinced by the evidence that the officers did not search through the drawers in the dressers. The defendant testified that the officers laid out clothes for him to wear and simply put the underwear on top of those clothes. The Court finds that it is more probably true that the following occurred: When the defendant expressed a desire to be permitted to dress, the officers took the necessary clothes from the closet and the drawer. In the process of getting the underwear from the top drawer of the dresser, the officer noticed the money. The Court so finds, believing that this factual picture is more likely true than ...

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